Protect Your Business

Your greatest competitors are often the vendor of your business or your former employees

We are often asked to give advice on both the sale of businesses and on contracts of employment. In our advice we draw our client’s attention to how the value of their business can be severely damaged by among other things:

• The person from whom they bought the business, who if there is no restraint, simply opens up nearby and competes directly for the customers of your business.
• Employees who can, if there is no restraint, simply stop working for you and commence business in competition. Even after you have spent considerable time and effort in training them. As well as, entrusting all of the information about your business to them.

It is important to protect your business against such competition by including suitable clauses in any applicable agreements?  Especially, as it is almost impossible to require such clauses to be included in agreements after they have been finalised. 

In the case of employees, if the employee has worked for you for some time before the subject is raised, it is unlikely you will then be able to implement the kind of terms that you need.

We typically advise that:

• There is no standard "one size fits all" clause;
• Every case is different and clauses must be modelled to suit each particular situation
• The shorter the clause, the greater the risk that the clause will not be of much help.

In our experience “Standard Documents” if they include anything on the subject include just a few short line provisions. We point that out to clients and even show them the type of clause that it refers to and at the same time show the client what is known as a “cascading clause” which is the recommended way to approach the matter. Unfortunately the vast majority choose nothing or at best a short form clause. They feel that a cascading clause will be found to be too challenging by the vendor or the employee. 

Unfortunately, we live in an age where both businesspeople and employees may look to make money out of the intellectual property or goodwill of others. Even where they have sold the business involved or are still employed by that business. 

The need to protect your goodwill and intellectual property, including customer details, is of great importance. Failure to protect these items can cause long lasting, if not permanent damage to one’s business. The High Court recently had the opportunity of considering this subject. The effect of its decision endorsed absolutely the approach we have taken with our clients for many decades.

Even if you have not included suitable terms in existing agreements, it will be worth discussing your position with ourselves. For two reasons:  

• It may well be possible to improve your current position to some extent. 
• You should be well prepared for the next time you need to implement protection for your business in the above circumstances.

 If the above has any relevance to your affairs, please do not hesitate to call us.

Mediation and Other Ways to Resolve Differences with Less Pain and More Gain

It has been the policy and practice of this firm to always consider ways of resolving differences between parties and continue to do so throughout the progress of cases we handle.

Life and its complexities have developed in every way and in every area of relationships and business. As a firm we have maintained our commitment to searching for ways to solve problems in the quickest and most economic way. We have continued developing and refining our skills.

Victor Berger has been accredited by mediation training and referral organisations ACDC and LEADR. He has been an executive member of the New South Wales Chapter of LEADR. As well as concluding a Masters in Law which included studies in International Commercial Dispute Resolution and Advanced Mediation.

Harry Freedman has been accredited by ACDC and as a Family Law Mediator.

Both continue ongoing education. They have also been instrumental in bringing judicial officers together to discuss expanding the role of mediation in the court system.

The result has been that:

Victor Berger has been able to use his skills in many areas including Commercial and Business disagreements;

Harry Freedman has also done the same in Family Law matters. Including many cases where colleagues have requested him to mediate between couples for whom they act.

The great benefit of mediation has been increasingly recognised across almost every industry and social group. State and Federal Attorney Generals now have this high on their agenda as a means of providing speedy and cost effective justice. The use of mediation is found in business, unions and the military services. As well as religious, community, social and indigenous organisations.

When compared to court proceedings, mediation can achieve significant goals without having conditions imposed by a third party. These achievements are also often made whilst preserving the relationships of the people involved. And all that on top of considerable savings in time and expense.

Mediation is available from a vast variety of people with an extraordinary range of skills. The majority, however, have no legal training. At MBBF, we have had the opportunity to exchange knowledge and experiences with a very wide range of mediators. 

This has led us to believe that legal training is, in fact, a very important ingredient in the majority of mediation cases. Trained lawyers are often better placed to:

• Quickly identify authentic obstacles to negotiations.
• Assess areas of genuine disagreement which are based upon misunderstood principles.
• Offer solutions which include services from non-legal entities, such as, medical and social  practitioners.

In our experience, for the majority of cases, the parties in disagreement are comparing their potential solution with that which a judicial body might deliver. They often need to be reminded of the pitfalls and uncertainties of legal proceedings, as well as the potential costs and delays involved.

At MBBF, we are glad to receive any enquiries, free of cost, regarding the potential for resolving disagreements of any kind. Even if you do not feel such disagreements involve legal questions.

All Creatures Great and Small ….

Yet for some reason most people never turn their attention to them…

If your family unit includes a furry, feathered or scaly member then you are counted amongst the 63% Australian households caring for a pet. There are over 58 million pets of various species throughout Australia and 91% of Aussies say they feel very close to their pets. Many Australians consider their pets a beloved family member and some think of them as children.

Regrettably we can forget about our pets when it comes to our own mortality. Maybe it is just too sad to think of parting from our beloved furry companions or perhaps its just too hard to know what to do. Unfortunately it is not as easy as just leaving money in our Wills in our pets names. But there are ways to provide financially for our pets care. In many jurisdictions around the world, including Australia, pets are not allowed to be named as beneficiaries in Wills because only people and organisations can be named.

If you want to ensure your beloved pets are looked after, once you pass away, it is recommended that you organise someone who has committed to providing a good home and speak to us at MBBF so that we can tell you how to do it. We all love our pets, but what will happen to them when we are no longer around?